Script 163 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses the law as it applies to gay and lesbian relationships. In this script, “spouse” means a legally married person and “partner” means someone in a common-law relationship.

The law relating to gay and lesbian relationships has changed considerably
Changes in both federal and provincial laws now give people in gay and lesbian relationships the same status as people in opposite-sex relationships. People in same-sex relationships in British Columbia now have all of the same rights and responsibilities that people in opposite-sex relationships have.

1. What are the changes to federal laws?

Same-sex couples can now marry
The federal Civil Marriage Act has been changed to allow gay and lesbian couples to marry anywhere in Canada.

Married same-sex couples can now also divorce
The Civil Marriage Act also changed the federal Divorce Act to include same-sex couples within its definition of “spouse.” The Divorce Act thus now applies to all married couples, whether same-sex or opposite-sex. This means that child support and spousal support, plus orders about the care and control of children, are available under both the federal Divorce Act and the provincial Family Relations Act – discussed later in this script – for same-sex couples that are or were married.

Note than only married couples need to divorce when their relationships end. If you live common-law, you don’t have to get a divorce when you separate.

What about getting federal benefits?
The Modernization of Benefits and Obligations Act changed 68 federal laws, including the Income Tax Act, the Canada Pension Plan and the Old Age Security Act. The changes were designed to ensure that:

• Same-sex married couples have the same benefits and obligations as opposite-sex married couples.
• Same-sex common-law couples have the same benefits and obligations as opposite-sex common-law couples.
• Same-sex couples have the same access as other Canadian couples to social benefits programs they contribute to.

Federal laws use the term “common-law partner” to describe common-law partners, and generally require that you must have lived together in a marriage-like relationship for at least one year. Only couples that are married are considered “spouses” under these federal laws.

2.  What are the changes to BC’s provincial laws?

Perhaps the most important change has been to the definition of “spouse”
Traditionally, the law said a “spouse” was a person who was married to someone of the opposite sex. That has since changed significantly.

Under the laws of BC, a “spouse” now includes people who are married and people who are in common-law relationships, whether the relationship is between people of the same or opposite sexes. Most of BC’s provincial laws recognize unmarried couples as “spouses” if they have lived together for at least two years. But some provincial laws, such as the law about social assistance, have a different time requirement.

Can people in same-sex relationships get spousal support?
In the provincial Family Relations Act, the definition of “spouse” includes same-sex common-law partners as well as married persons. This means that:

• Married same-sex spouses can claim spousal support under the Family Relations Act. 
• Unmarried same-sex partners can also apply for spousal support under the Family Relations Act if they have lived together for at least two years and the claim is made within one year of the end of the relationship.

Can people in same-sex relationships get child support?
In the provincial Family Relations Act, the definition of “parent” includes step-parents, same-sex common-law partners who have lived together for at least two years, adoptive parents and biological parents. This means that upon separation:

• If you and your spouse or partner are the adoptive or biological parents of a child, you can claim child support. 
• If you are or were married and your spouse or ex-spouse isn’t the adoptive or biological parent but rather a step-parent to your child, you can claim child support.
• If you are unmarried but have lived together with your partner for at least two years, you can claim child support, however in this case, you must apply for support within one year of the end of the relationship.

What about custody and access of children?
People who qualify as “parents” under the Family Relations Act may apply for custody, guardianship and access, regardless of whether they are in a same- or opposite-sex relationship.

Can a gay or lesbian couple adopt?
In 1996, BC’s Adoption Act was changed to allow any two eligible adults, including two adults of the same sex, to jointly apply to adopt a child, whether they are married or unmarried. So any two people who meet the eligibility requirements can adopt a child.

For more information on adoption, refer to script 145 on “Adoption” and script 146 on “Adoption Registries.”

Can people in same-sex relationships share in family property?
The rights that people in same-sex relationships have with respect to family property are exactly the same as the rights that people in opposite-sex relationships have.

In a divorce, people who are married can apply to divide their assets under the Family Relations Act. Under that law, married spouses are presumed to have an equal interest in any asset which is normally used for a family purpose, regardless of who owns the asset or when the asset was acquired.

On the other hand, people who aren’t married only have an automatic interest in property that they own together. So, generally, you can only claim an interest in property owned solely by your partner under the law of trusts. This is a complicated area of the law and you really should get the advice of a lawyer, but generally you have to show a contribution which can be financial or otherwise.

What about getting pension benefits?
BC pension laws have also changed. Today, gays and lesbians have the same rights to spousal pension benefits as opposite-sex married spouses or common-law partners. You can name your same-sex spouse or partner as the beneficiary of your pension.

Where can you get more information?

• Refer to the other Dial-A-Law scripts in the Family Law series, in particular, scripts 147, 148 and 150 on common-law relationships.

[updated September 2007]

Dial-A-Law© is a library of legal information that is available:

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